Summary: Mr X complained about the way the Council decided a planning application for a development near his home. He said there was a conflict of interest, the Council failed to properly consider the impact of the development and its decision was flawed. We have not found fault by the Council in the way it determined the application.

The complaint

1. The complainant, who I am calling Mr X, complains about the way the Council’s Regulatory Board decided a planning application for a development near his home.
2. Mr X says there was a conflict of interest because the planning application was made on the Council’s behalf.
3. He also says the Council failed to properly consider the impact of the development and the decision to grant permission was flawed for a number of reasons because the Council:

• provided its Regulatory Board with misleading information about the safety and feasibility of, and public support for, an alternative proposal.
• provided misleading information about the effect of the development on listed buildings by saying it would not cause them to flood. The development will lead to flooding of these properties
• failed to provide full information about the financial implications of the development, such as compensation to property owners, and that the decision to approve will cause effects which are outside of the Council’s powers.
• had reached a foregone conclusion the development should go ahead. Unlawful pressure was put on the Board members to approve the application.
• failed to conduct the virtual meeting at which the application was approved fairly. There was insufficient time to discuss the application fully and some members did not have a proper opportunity to put their views forward
• failed to allow sufficient time at the meeting to deal with all the objections submitted. The application was steamrollered through.
• failed to give consideration to other options such as using piling to raise the road height to avoid using gates restricting access to emergency vehicles.
• failed to refer to questions about the consent of the owners of private land on which part of the development was to be built, as an issue affecting the Board’s decision making.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I spoke to Mr X about his complaint, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
8. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Planning law and guidance

9. The Town and Country Planning Act 1990 gives councils the power to decide if planning applications should be approved, refused, or approved subject to planning conditions.
10. Councils should approve planning applications in line with the policies in their development plans unless other material planning considerations indicate otherwise.
11. Material planning considerations concern the use and development of land in the public interest and include:

• Local and national planning policies
• Highway issues
• Protection of ecological and heritage assets
• The impact on neighbouring amenity

12. Planning considerations do not include things like:

• The impact of a development on property value
• Private rights and interest in land

13. Councils may give competing planning considerations different weight when making their decision.

Town and County Planning General Regulations 1992

14. These regulations set out how planning applications by local planning authorities are to be decided and provide for these applications to made in the same way as those by other applicants.
15. Regulation 3 says a local planning authority is to make an application for permission to develop land within its area to, and determine the application, itself.
16. Regulation 10 says an application for planning permission by a local authority for land it owns or for land it proposes to develop may not be decided by any committee responsible for the management of the land to which the application relates.

The Council’s procedure

17. Under its constitution, the Council’s powers to determine planning applications under the Town and Country Planning Act 1990 are delegated to its Regulatory Board committee.
18. The Regulatory Board is the Council’s planning committee. It is not responsible for the management of any land or buildings.

What happened

Events leading up to December 2020

19. I am only investigating Mr X’s complaint about the way the Council made its planning decision in December 2020. I have, however, set out some background information by way of context.
20. A number of local authorities, including the Council, formed a partnership (Coastal Partners) to lead on coastal issues within their areas.
21. In March 2015 the Council’s Community Board committee approved Coastal Partners proposed final strategic policies for sustainably addressing flood and coastal erosion risk. This strategy included a development phase for a programme of work for coastal management options and flood defence schemes. One of these schemes was work to flood defences within the Council’s area, near Mr X’s home.
22. Coastal Partners held a number of public exhibitions about options for the new flood defence scheme. It decided the preferred option for which planning permission was required.
23. The Council has told us the Coastal Partners’ submission of the application was an action encompassed by the partnership agreement and the final step in the Council’s endorsement of the strategy.
24. In 2020, Coastal Partners made a planning application, on the Council’s behalf as the applicant for the preferred scheme. Because this was located within the Council’s area the application was submitted to the Council.

How the Council made its planning decision

25. The application was publicised. The Council’s planning officers completed statutory consultations. An officer considered the application and responses and prepared a report recommending its approval.
26. The officer’s report included:
1. A description of the proposal and site
2. Responses from consultees
3. Details of objections to the application and comments on the main objection issues
4. Details of relevant planning policies and guidance
5. An appraisal of the main planning considerations including:

• Principle of development and flood risk
• Archaeology, design, heritage and trees
• Visual and residential amenity
• Ecology
• Highways
• Equality Act
6. The officer’s recommendation to approve the application subject to planning conditions

27. The application was referred to the Council’s Regulatory Board for a decision. The Board considered the application at its meeting on 2 December 2020. The officer’s report was published with the meeting agenda and provided to the Board members in advance of the meeting.
28. The meeting was conducted virtually, due to COVID-19 restrictions, live streamed and recorded. At this meeting:

• A deputation opposing the application, and the Council’s deputation as the applicant, were read out to Board members.
• Members were given the opportunity to ask officers questions about issues raised in the deputations.
• Board members then debated the application.
• Following the debate, members were asked to vote on whether to approve the application.
• Eight members voted for approval and seven against. On this basis the Board resolved to approve the application.

Mr X’s complaint

29. Mr X complained to the Council about the Board’s decision. He raised a number of issues, including:

• The Board had been provided with misleading information and relevant information, such as cost estimates, had not been disclosed.
• The decision was based on fabricated evidence and was unsafe.
• The approval of the application would cause effects, such as the need to compensate those whose properties will be damaged by the scheme, which were outside the Council’s powers.

The Council’s response

30. In reply to Mr X’s complaint, the Council said:

• It did not agree the Board had been misled.
• The Council had two separate roles regarding the application, one as the scheme promoter and the other as decision maker, through the Regulatory Board. The Board’s role was limited to considering planning issues.
• Other issues he had raised, such as costs, were for the Council, as the promoter of the scheme to consider, and not the Board.

31. Mr X was unhappy with the Council’s response and brought his complaint to us.

My findings – was there fault by the Council causing injustice?

32. We are not a planning appeal body. Our role is to review the process by which a planning decision is made. We cannot question the merits of a council’s decision if it has properly followed its procedures and considered the relevant information.

Conflict of Interest

33. Mr X’s is unhappy the Council, through its Regulatory Board committee, gave planning permission for the scheme of which it was also the promoter.
34. But councils have a number of different roles. And as required by the Town and Country Planning Regulations, a council has a duty as a local planning authority to consider planning applications for development, including those, such as for leisure centres and libraries, where one of its own council departments is the applicant.
35. The Council’s Regulatory Board’s function is to determine planning applications. It is not responsible for the management of land or other Council functions. And I consider the Council’s interest in the application was well known publicly and the process was open and transparent.
36. In my view, the Council’s referral of the application to its Regulatory Board for a planning decision was in accordance with the Regulations. I do not consider it was fault for the application to be decided by the Board.

The consideration of the application

37. As part of the planning process, a council’s planning officers are expected to take a view on the acceptability of a proposal and provide unbiased and professional advice for council members. This will include a recommendation to either approve or reject an application.
38. The planning officer’s report for the Regulatory Board members set out how they considered the Council’s own policies and local plan, the material planning issues and consultee and neighbour responses, including a summary of the objections received.
39. In my view the officer properly considered and set out the relevant information and considerations in the report when making the recommendation to approve the application.

Regulatory Board meeting and decision

40. Although the meeting was virtual, it was live streamed for residents to watch. I consider it was open and transparent.
41. The officer’s report was published with the agenda and provided to Board members before the meeting. Deputations were read out and members were given the opportunity to ask officers questions and speak in the debate before voting. The meeting chair checked whether members wanted to ask or say anything further before concluding the question and debate stages.
42. The Board’s role was limited to deciding whether to give planning permission for the scheme proposed in the planning application. It was not for the Board to determine whether the Coastal Partners’ decision to choose this scheme as the preferred option, instead of any of the other options, was correct.
43. The law says councils should approve planning applications in line with the policies in their development plans unless other material planning considerations indicate otherwise. Although issues about cost and private landowners’ consent may have been relevant to the scheme’s viability, they were not material planning considerations and so not relevant to the Board’s planning decision.
44. I do not consider there is evidence the Board was provided with misleading or incomplete information about relevant material planning considerations. It was entitled to weigh up the competing planning considerations when making its decision.
45. I do not consider there was fault in the way the Board made its decision to approve the application.
46. I understand Mr X strongly disagrees with the decision to propose this scheme as the preferred option for improving flood defences in the area in which he lives. But I have not found fault in the way the Council considered, or decided to approve, the planning application for the scheme.

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Final decision

47. I have completed my investigation and have not found fault by the Council in the way it determined the planning application.

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Investigator's decision on behalf of the Ombudsman